Health issue irrelevant, tobacco firms tell court

By Lenore Taylor

March 13, 2012 — 3.00am

Big tobacco companies have told the High Court they ''deny the content'' of documents lodged by the federal government making the case that smoking causes lung cancer.

In a hearing on the tobacco companies' court case against the government's new plain packaging laws, the companies have tried to block ''barrow loads'' of documents setting out evidence that smoking causes cancer on the basis that they were not relevant to the constitutional point being argued.

But two of the companies, Philip Morris and Imperial Tobacco, also took issue with some of the content of the documents.

Alan Archibald, QC, representing Philip Morris, said the company ''denied the contents'' of the documents presented by the government.

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"The Commonwealth wants to go further … wanting to bring in barrow loads … of documents … We have admitted … that the documents were prepared or commissioned by the Commonwealth, they were published, et cetera, and we have said we deny the contents of them," he said.

The Solicitor General, Stephen Gageler, appearing for the government, said the documents had to be admitted precisely because not all the tobacco companies accepted what they said.

"The gravity of the harm caused by smoking is something that my learned friends take different positions on,'' Mr Gageler said in the directions hearing late last month. "In the case of Mr [Allan] Myers [representing British American Tobacco] he is prepared to accept, on the pleadings, that there are serious health consequences caused by smoking. Mr [Bret] Walker's client [Imperial Tobacco], on the other hand, is prepared to accept nothing more than that some people say that … ''

"Now, your Honour, I am faced with a position of plaintiffs who refuse to accept the conclusions generally drawn by health authorities around the world as to the health effects of smoking. It is for that reason that there seems to be a necessity to burden the court with documents that record what many people would regard as common knowledge."

A spokeswoman for Imperial Tobacco said the company objected to the material being used in the case because it was a constitutional question, not a health question.

She pointed to the company's public position on smoking and health, which says studies have shown smoking is linked to several diseases and this had led public health authorities to conclude smoking was the cause of lung cancer and other diseases. The website does not state that the company accepts the link.

A spokeswoman for Philip Morris said the company agreed smoking was ''addictive and harmful'' but the case was about an alleged violation of the constitution.

The tobacco companies argue the plain packaging laws effectively acquire their ''valuable brands and intellectual property'' without compensation, and therefore breach the constitution.

The world-first legislation will strip all branding from cigarette packs from December and force them to be drab green, with graphic health warnings. Tobacco companies are fighting the laws through every possible means because they are regarded as an international test case. The court is now considering the documents as well as the arguments made against them.